How to Renovate Radio Regulation

A Look at Various Plans That Have Been Proposed for Restructuring the FCC

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A Look at Various Plans That Have Been Proposed for Restructuring the FCC

As the recent political season suggests, decision-making often comes down to a what's-in-it-for-me analysis. While many lofty discussions on various candidates and "the issues" may fill our dinner and water-cooler conversations, the real impact of government's workings is only felt when something strikes close to home.

So most readers of this publication will have that kind of focused interest in some of the recent (albeit early) posturings on how the Federal Communications Commission might be restructured to better serve the industry and American consumers in the digital age. Some of these proposals call for quite radical shifts, while others recommend more conservative change. Exploring them also sheds light on some things we may have forgotten, or never knew, about the current structure of the agency, so let's start there.

A unique design

The FCC is one of the federal government's so-called independent agencies, which means that although it is officially a part of the executive branch, it does not fall under the control of any executive (i.e., "cabinet") department. Independent agencies are structured and governed in a way that is intended to provide some measure of insulation from partisan politics. Such agencies include several other regulatory bodies like the FTC, EPA, Federal Elections Commission, Nuclear Regulatory Commission and the SEC (along with numerous non-regulatory federal operations, some familiar examples of which include the CIA, NASA, FDIC, the U.S. Postal Service, the Federal Reserve, the Peace Corps, NEA/NEH, the Social Security Administration, SBA, Amtrak and VOA).

Contrast this to the executive agencies, many of which also are involved with regulation, and each of which reports directly to a cabinet secretary and thereby to the president. Among these are the FAA (Department of Transportation), NTIA (Commerce), FEMA (Homeland Security), OSHA (Labor), NIST (Commerce), the Bureau of Land Management (Interior), FBI (Justice), the National Weather Service (Commerce), NSA (Defense), FDA (Health & Human Services), IRS (Treasury) and many others.

The special attributes that attempt to keep independent agencies apart from direct or overt political influence by a given administration include their governance by a relatively large, odd number of commissioners that is balanced by party affiliation - the majority and leadership of which goes to the party of the current administration, just like congressional committees - with commissioners serving staggered terms (of five years, in the FCC's case). Candidates also require some technical expertise in the field of the agency's jurisdiction, and although the president nominates all candidates (and selects the chairman), and each are subject to Senate confirmation, sitting commissioners cannot be removed by the president during their terms for policy reasons.

On the other hand, executive agencies often have a single director - or a very small number of commissioners - who serves at the whim of the administration, with appointments also subject to Senate approval, and who can be removed at any time for any reason. Therefore such an agency is considered more vulnerable to political pressure from the White House.

Radical restructure?

One proposal for change at the FCC is espoused by a think tank called the Progress & Freedom Foundation, and generally presented by its senior fellow and director of communication policy studies, Randolph J. May.

This approach cites many of the FCC's recent policy actions as being too slow and producing unclear or ambiguous results that invite judicial or congressional reversal. May believes this is directly attributable to the FCC's structure as an independent agency, and therefore proposes that the commission be reshaped as an executive agency, most likely under the Department of Commerce.

His plan also calls for the number of commissioners to be reduced from five to three, or perhaps to a single director. (May feels this would help even if the FCC remained an independent agency. Many readers will recall that the original structure of seven FCC commissioners was reduced to five in 1983, during Mark Fowler's tenure as chairman in the first Reagan administration, primarily for reasons of expediency.)

May believes that the resulting increased politicization of the commission would be beneficial, and should be allowed to transpire as part of normal American governmental process. He acknowledges that the adjudicatory and administrative parts of the FCC's process (such as licensing, renewals and regulatory enforcements) should not be politicized, however, and that these should be split apart from the pure policymaking element of the commission under his plan.

Finally, May's proposal calls for a reduced scope and size of the resulting agency, in reaction to the growing competition now emerging in the telecommunications industry, on the premise that the marketplace increasingly will exercise its own controls to the consumer's benefit.

As staggering as this scheme may sound to broadcasters, it is not without precedent. Some readers may remember the Civil Aeronautics Board and the Interstate Commerce Commission. Both were former independent agencies, regulating the airline and trucking/railroad industries respectively, that have since been eliminated.

In the ICC's case, its functions were reduced in scope by deregulatory action of Congress in 1995, and all remaining regulation assigned to a new executive agency called the Surface Transportation Board, under the Department of Transportation. The CAB's demise is even more apt to May's proposal, in that some of its work - accident investigation and safety recommendations - remained insulated under the NTSB, which was made an independent agency in 1975 for this reason, while the rest of CAB's work - primarily rate regulation - moved directly to the executive branch, in the Office of the Secretary of Transportation, when the CAB was shut down in 1985.

Next time we'll discuss other views on possible restructuring of the FCC.

We conclude our examination of the remaining unknowns of IBOC with a look at RadioGuard, the conditional access system proposed by Ibiquity Digital for use on HD Radio subscription services, which if the FCC’s final IBOC rules permit, could be the primary mechanism for radio subscription service delivery.

Last time we discussed how the FCC's attempt to institute a backward-compatible content protection scheme for digital television was rebuffed by the courts, and how TV content providers have been working ever since to have the system reinstated.